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Wightman v Secretary of State for Exiting the European Union [2018] CSOH 61

11 June 2018

On 29 March 2017 the United Kingdom gave notice to the European Council under article 50(2) of the Treaty on European Union of its intention to withdraw from the European Union. The petitioners, all but one of whom are members of the UK, Scottish or European parliaments, raised proceedings for judicial review seeking a reference to the Court of Justice of the European Communities to determine the question whether the notice could be revoked unilaterally by the UK acting in good faith. The government argued among other things that the issue is hypothetical and academic, since it does not intend to seek to revoke the notification. Nor has Parliament instructed it to do so, and as a matter of fact there is nothing to suggest that it will.

Lord Boyd of Duncansby held that the issue was hypothetical and academic: the issue of revocation was contingent on circumstances and on a change in political will. The answer to the question of revocability was not required to enable the petitioners to fulfil their roles in their respective Parliaments. Lord Boyd also held that the subject-matter of the petition involved an encroachment on Parliamentary sovereignty and was outwith the jurisdiction of the court; and that use of Parliamentary material of the nature referred to by the petitioners involved a clear breach of Parliamentary privilege. Finally, Lord Boyd held that, as the domestic court responsible for determining whether a reference should be made to the Court of Justice, he was satisfied that the question asked was hypothetical; and the facts upon which the Court would be asked to give an answer could not at this stage be ascertained because they have not occurred. A reference should not be made. For all these reasons the petition was refused.